Wednesday, 29 April 2009

Access to information seems to be one of the themes of the month in Strasbourg. After a judgment against Hungary earlier in April, the Court yesterday issued its judgment in the case of K.H. and others v. Slovakia (24 April, Appl.No. 32881/04). A group of eight Roma women had been treated in hospitals in Slovakia during their pregnancies and afterwards none of them could conceive children anymore. They suspected that they had been sterilised without giving permission for this. This is indeed a practice which has continued to occur in Slovakia over the years and which was criticised last year by the UN's Committee on the Elimination of Discrimination Against Women in its concluding observations on the country's state reports.

In order to find out whether the hospital treatment was indeed the cause of their infertility, as they suspected, and in order to use such potential evidence in proceedings for damages, the women requested access to their medical files in order to make photocopies. The state refused to give them the photocopies. The applicants complained in Strasbourg that this violated their right to private and family life (Article 8 ECHR) and their right to access to Court (Article 6 ECHR), since the possible information in their medical file was essential for assessing their position in future proceedings.

The Court reiterated that Article 8 also entailed positive obligations. This could entail giving people access, regulated by law, to their personal data. In the present case the Court clarfied what it meant to make such a qualified right practical and effective and indicated that the burden of proof is on the state to justify refusal of access, and not on the applicants to justify the reasons for wanting access:

47. Bearing in mind that the exercise of the right under Article 8 to respect for one’s private and family life must be practical and effective (see, for example, Phinikaridou v. Cyprus, no. 23890/02, § 64, ECHR 2007-... (extracts), with further reference), the Court takes the view that such positive obligations should extend, in particular in cases like the present one where personal data are concerned, to the making available to the data subject of copies of his or her data files.48. It can be accepted that it is for the file holder to determine the arrangements for copying personal data files and whether the cost thereof should be borne by the data subject. However, the Court does not consider that data subjects should be obliged to specifically justify a request to be provided with a copy of their personal data files. It is rather for the authorities to show that there are compelling reasons for refusing this facility.

The Court also found a violation of Article 6 ECHR and importantly held the following in para. 66 of the judgment:

The protection of a person’s rights under Article 6 requires, in the Court’s view, that the guarantees of that provision should extend to a situation where, like the applicants in the present case, a person has, in principle, a civil claim but considers that the evidential situation resulting from the legal provisions in force prevents him or her from effectively seeking redress before a court or renders the seeking of such judicial protection difficult without appropriate justification.

The Slovakian judge dissented on this part of the otherwise unanimous judgment, mentioning amongst others that the applicants did not even try to bring such proceedings.

Not only an important step in the battle of the Roma against these harmful practices, but also in the clarification of what respect for the right to private life means for accessing personal information.

This article examines the European Court of Human Rights's encounter with general international law in its Behrami and Saramati admissibility decision, where it held that the actions of the armed forces of States acting pursuant to UN Security Council authorizations are attributable not to the States themselves, but to the United Nations. The article will try to demonstrate that the Court's analysis is entirely at odds with the established rules of responsibility in international law, and is equally dubious as a matter of policy. Indeed, the article will show that the Court's decision can be only be explained by its reluctance to decide on questions of State jurisdiction and norm conflict, the latter issue becoming the clearest when Behrami is compared to the Al-Jedda judgment of the House of Lords.

Tuesday, 21 April 2009

The Court is slowly increasing the visibility of its 50th anniversary on its own website. This week a special part of the website has been specifically dedicated to it, in a user-friendly format. It is a work in progress with updates throughout the course of the year on events related to the anniversary. In addition, it is an accessible portal to a host of Court-related information. A very nice feature is the overview (including full texts) of the existing series of the Council of Europe own handbooks on all kinds of aspects of the Court's case-law. The site features an interactive map of all state parties and even a quiz to test your ECHR knowledge. Navigate and anjoy!

Monday, 20 April 2009

Last week, the European Court issued its judgment in the case of Társaság a Szabadságjogokért (the Hungarian Civil Liberties Union) v. Hungary. In the case the Court did not recognise a general right to access to information, but did indicate that in some situations the state is bound not to hamper the free flow of information which is readily available and hwich is sollicited by social watchdogs, such as the press or even some NGOs (such as in this case). Importantly, in para. 37, the Court pointed out that it" considers that it would be fatal for freedom of expression in the sphere of politics if public figures could censor the press and public debate in the name of their personality rights, alleging that their opinions on public matters are related to their person and therefore constitute private data which cannot be disclosed without consent."

This is the press release of the Justice Initiative of the Open Society Institute, one of the third party interveners in the case:

NEW YORK, April 17, 2009—The Open Society Justice Initiative today applauded a decision by the European Court of Human Rights expanding the right of watchdog groups to access government information.

The decision, handed down earlier this week, recognized for the first time that Article 10 of the European Convention on Human Rights guarantees the "freedom to receive information" held by public authorities. The court noted the important role played by the media and other independent monitors in creating "forums for public debate" and emphasized that any interference with the ability of such groups to obtain information of public interest must be able to withstand the "most careful scrutiny." The court emphasized that governments have an obligation "not to impede the flow of information" on matters of public concern.

In 2004, a member of the Hungarian Parliament filed a complaint with the country's Constitutional Court over Hungary's national drug laws. The Hungarian Civil Liberties Union—a rights group active in the field of drug policy—applied to that court to receive a copy of the complaint. Both the Constitutional Court and Hungary's regular courts denied the request on privacy grounds. The Hungarian Civil Liberties Union took the case to the European Court of Human Rights alleging that the denial interfered with its right to access state-held information necessary to fulfill its role as a public watchdog.

This week's decision will help ensure that nongovernmental organizations in Europe and elsewhere can continue their important roles as government monitors and contributors to policy debates. In the words of the court, it would be "fatal" for democratic openness "if public figures could censor the press and public debate in the name" of their privacy rights.

The European Court is now the second regional human rights tribunal, after the Inter-American Court of Human Rights, to recognize that the "freedom to receive and impart information and ideas," guaranteed by the Universal Declaration of Human Rights as well as regional human rights treaties, includes a right to receive information of public interest held by government authorities. Both courts highlighted the strong connections among the right to information, freedom of expression, and democratic accountability.

Their intervention submitted to the Court can also be found on their site. Many thanks to Darian Pavli for drawing my attention to this!

Tuesday, 14 April 2009

As most of the readers of this blog will be very aware, the Court has been and is still struggling with its huge and growing case load of applications. In the chorus of possible solutions a new voice has been added. Ulrike Deutsch and Rüdiger Wolfrum, of the Max Planck Institute for Comparative Public Law and International Law (which has one of the best law libraries of Europe, if you ever get the opportunity to visit) in Heidelberg, have compiled a new book at Springer Verlag: The European Court of Human Rights Overwhelmed by Applications: Problems and Possible Solutions. This is a short abstract of the book:

The European Court of Human Rights is faced with an enormous and ever-increasing caseload, which poses a considerable threat to the effectiveness of the protection of the rights guaranteed by the European Convention on Human Rights and its Protocols. Compiling the contributions of distinguished academics and practitioners who are active in the field of European human rights law, this publication is meant as a contribution to the still ongoing discussion on the reform of the control mechanism of the European Court of Human Rights, which is necessary to prevent a failure of the European system of human rights protection.

This small but elegant volume (based on a seminar held in December 2007) contains contributions by big names in the field such as Luzius Wildhaber (former president of the Court), Rudolf Bernhardt, Mark Villiger, and Jochen Frowein. The book thus offers both insiders' and outsiders' views.

Thursday, 9 April 2009

Philip Leach (the famous ECHR practioner), Costas Paraskeva, and Gordana Uzelac have undertaken extensive research on 'International Human Rights and Fact-finding. An analysis of the fact-finding missions conducted by the European Commission and Court of Human Rights', published online by London Metropolitan University. The very elaborate and detailed report deals with yardsticks for assessing the necessity of fact-finding, the practicalities, and the use of evidence thus obtained in proceedings before the Court. Although they are currently relatively rare (the new full-time Court has only undertaken 18 of them in ten years), the authors argue that on some instances this mechanism remains essential. A thorough and highly recommended piece of research.

Wednesday, 8 April 2009

Strasbourg watchers may have become used to the swarm of cases concerning prison conditions. But even for them, a judgment issued yesterday by the Court may contain a novelty. In Branduse v. Romania, the Court found that the state had not only violated Article 3 ECHR (prohibition of inhuman and degrading treatment) because of the overcrowded conditions in the prison, but also Article 8 ECHR (right to respect for private life) because of the stench and stale air that came from outside the prison!

The stench came from a former refuse tip, which was partly still being used illegally. Following its earlier case law, the Court held that Article 8 ECHR can, in cases of nuisance from noise or fumes, even be applicable if there is no grave danger for health, but when an environmental impact assessment has shown that there were dangerous effects of a certain activity. In this case, the national assessment had shown that people living even further away from the tip than the prison was situated had to undergo "total discomfort". Although Branduse had not shown any effects on his health, the very fact that he had to endure the stench for seven years had affected his quality of life to such an extent that Article 8 became applicable. After all, the Court noted, the prison cell was his only "space of life" during the period concerned. In the assessment on the contents, the Court focused on procedural issues, such as the failure of the authorities to abide by their own rules and the lack of access to environmental information for the prisoner. It can be concluded that even detainees have certain rights concerning a reasonable environment and that environmental problems do not only cross borders - as the famous dictum puts it - but also prison walls!

The judgment itself is available only in French, but a press release in English can be found here.

Monday, 6 April 2009

The British Law Lord Hoffmann has heavily criticised the European Court of Human Rights, as the BBC reported last Saturday in a news release. In a lecture held at the Judicial Studies Board on March 19, Lord Hoffmann argued the following about the Court in Strasbourg:

"In practice, the Court has not taken the doctrine of the margin of appreciation nearly far enough. It has been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States. It considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe."

He also implies that part of the Court's backlog of cases is due to this approach. Certainly worth a read (although I do on most points not agree with his analysis), since it is rare that one of the highest judges of any ECHR state party is so critical of the Court.

Many thanks to Ed Bates of the University of Southampton for notifying me of this!

Wednesday, 1 April 2009

Yesterday, the Court issued its judgment in the case of Sanoma Uitgevers B.V. v. the Netherlands. The case deals with the protection of journalistic sources. I am very grateful that today the blog hosts a special guest blog analysis of the case by an expert in media law, professor Dirk Voorhoof of Ghent University (Belgium). Many thanks! These are his comments on the case:

Yesterday, the European Court of Human Rights has delivered a regrettable judgment in a case of protection of journalistic sources: ECtHR 31 March 2009, Sanoma Uitgevers BV v. the Netherlands.

With a 4/3 decision the Court (Third Section) is of the opinion that the order to hand over a CD-ROM with photographs in the possession of the editor in chief of a weekly magazine is in casu not a violation of Article 10 of the ECHR.

The applicant, Sanoma Uitgevers B.V., is a limited liability company, specialising in publishing and marketing magazines, incorporated under Dutch law and based in Hoofddorp (the Netherlands). Relying on Article 10 (freedom of expression), the company complained of having been compelled to hand over the CD-ROM that could reveal the identity of journalistic sources who, on the promise of anonymity, had provided information about an illegal street car race which took place in January 2002 and of which the publishing company took pictures.

The European Court starts from its established case law, holding that:

"protection of journalistic sources is one of the basic conditions for press freedom, as is recognised and reflected in various international instruments including the Committee of Ministers Recommendation (...). Without such protection, sources may be deterred from assisting the press in informing the public on mattersof public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest."

The Court does not, of course, dispute that a compulsory handover of journalistic material may have a chilling effect on the exercise of journalistic freedom of expression. The Court also reiterates that the authorities are not in all cases prevented from demanding a handover of journalistic documents or information. In particular, the domestic authorities are not prevented from balancing the conflicting interests served by prosecuting the crimes concerned against those served by the protection of journalistic privilege; relevant considerations will include the nature and seriousness of the crimes in question, the precise nature and content of the information demanded, the existence of alternative possibilities to obtain the necessary information, and any restraints on the authorities' obtention and use of the materials concerned (compare Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02, ECHR 2005-XIII). Referring to the facts of the case, the Court's majority of four judges is of the opinion that:

"58. The crimes were serious in themselves, namely the removal of cash dispensers by ramming the walls of buildings in public places with a shovel loader. Not only did they result in the loss of property but they also had at least the potential to cause physical danger to the public. At a ram raid perpetrated on 1 February 2002 theperpetrators made use of a firearm to facilitate their crime (see paragraph 19 above). It was only after the threat of potentially lethal violence was made that the police and the public prosecutor were moved to demand from the applicant company the information which was known to be in their possession.59. The Court is satisfied that the information contained on the CD-ROM was relevant to these crimes and, in particular, capable of identifying their perpetrators.60. Given that the participation of the suspected vehicle in the street race only became known to the police after the race had taken place, the Court is satisfied that no reasonable alternative possibility to identify the vehicle existed at any relevant time".

Although the European Court expresses some hesitations regarding the way the authorities in the Netherlands acted in this case, it is of the opinion that there was no breach of Article 10:

"62. Finally, the Court has had regard to the extent of judicial involvement in the case. It is disquieting that the prior involvement of an independent judge is no longer a statutory requirement (..). As it was, the public prosecutor obtained the approval of the investigating judge even without being so obliged by domestic law (..); the Court considers this, as an addition to the applicant company's entitlement under statute of review post factum of the lawfulness of the seizure by the Regional Court (..), to satisfy the requirements of Article 10 in the present case.63. The Court is bound to agree with the Regional Court that the actions of the police and the public prosecutors were characterised by a regrettable lack of moderation (paragraph 16 above). Even so, in the very particular circumstances of the case, the Court finds that the reasons advanced for the interference complained of were ‘relevant’ and ‘sufficient’ and ‘proportionate to the legitimate aims pursued’. There has accordingly been no violation of Article 10 of the Convention”.

It is obvious that the majority of the Court neglects with this judgment some important principles and aspects regarding protection of journalistic sources. The three dissenting judges express their manifest disagreement with the majority of the Court and develop several pertinent arguments that should have made the Court decide in this case that there has indeed been a violation of Article 10 of the Convention (dissenting opinion of judge Power, joined by judges Gyulumyan and Ziemele). The dissenters point out that the police

"without any prior judicial assessment or authorisation, arrived at one of the applicant's editorial offices, ordered the editors to surrender all photographic and other materials required for an investigation, declined to give details as to the necessity for the demand, refused to entertain any objection based on journalistic undertakings of confidentiality, threatened, arrested and detained the editor in chief and further threatened to close and search all of the applicant company's premises for an entire weekend (§§ 10-13). What occurred in this case, (..) , is not far removed from (and in certain respects goes beyond) the type of ‘drastic measure’ previously criticised by this Court in finding a violation of Article 10 of the Convention. The absence of any statutory requirement for prior judicial involvement in a case such as this, is, (..) somewhat more than ‘disquieting’ (as the majority considers) and the actions of the police are a great deal more than ‘regrettable’ (§§ 62, 63)".

The dissenters also refer to the fact that "the distinction between a journalist's ‘sources’ and his or her ‘materials’ (such as, notes, recordings, photographs) forms part of the rationale relied upon by the majority in its finding of no violation in this case (see §§ 57, 61)” and that

"(..), great caution should be exercised before the law draws too sharp a distinction between such matters. The purpose of the legal of protection of sources is founded upon an important point of principle. This protection is granted to ensure that those who (for reasons of fear or otherwise) disclose, secretly, to journalists matters that are of public interest are not discouraged from so doing by the risk that their identities may be revealed. If legal protection is to be limited, strictly, to non-disclosure of ‘sources’ then such sources may suddenly ‘shut up’, fearful that their identities will be ascertainable once the journalist to whom confidential data has been given is no longer its sole custodian. Such a risk of indirect disclosure is likely to discourage an otherwise courageous ‘source’ from bringing matters of vital interest into the public domain. (..), it is not of pivotal significance that the intention behind a given interference is to identify evidence rather than individuals. It is the fact of interference (with its attendant risk of source identification) that undermines and weakens the worth of a journalist's undertaking. Thus, this Court imposes a high threshold of ‘necessity’ before finding that such interference can be compatible with Article 10."

The dissenters are of the opinion that

"because of the importance of the principle at stake, the journalist should be the last, rather than the first, means of arriving at evidence required. Where, in the public interest, a pressing social need to interfere with journalistic confidentiality is asserted then the determination of whether relevant and sufficient reasons have been adduced to substantiate that claim should be made by a competent court having ‘heard’ the competing public interest. Otherwise, the police become judges in their own cause and a fundamental right protected under Article 10 of the Convention is thereby undermined to the detriment of democracy".

The dissenters come to the conclusion that the actions of the police in this case were a breach of Article 10 of the Convention. They formulate finally an important warning:

"In finding no violation, the majority merely wags a judicial finger in the direction of the Netherlands authorities but sends out a dangerous signal to police forces throughout Europe, some of whose members may, at times, be tempted to display a similar ‘regrettable lack of moderation’".

This judgment indeed "will render it almost impossible for journalists to rest secure in the knowledge that, as a matter of general legal principle, their confidential sources and the materials obtained thereby are protected at law". Organisations of journalists and NGOs advocating freedom of expression and investigative journalism might consider supporting the applicant in order to request for a referral to the Grand Chamber of the European Court of Human Rights, in order to have this judgment 'overturned'.